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I  The  March  of  the  Constitution 


Annual  Address  before  the 
American  Bar  Association 
AT  Saratoga,  August  30,  igoo 


BY 


GEORGE  R.  PECK 


The  March  of  the  Constitution 


Annual  Address  before  the 
American  Bar  Association 
AT  Saratoga,  August  30,  igoo 


BY 

GEORGE   R.  PECK 


THE  MARCH  OF  THE  CONSTITUTION. 


Mr.  President,  and  Gentlemen  of  the 

American  Bar  Association: 

For  something  more  than  a  hundred  years  the  peo- 
ple of  the  United  States  have  enjoyed — or  have  had  the 
right  to  enjoy — the  protection  of  a  written  constitution. 
Its  sanctions  and  its  guaranties  have  been  with  them 
and  over  them  so  long  that  they  often  seem  to  be  only 
natural  and  every-day  rights,  immemorially  existing. 
But  the  Federal  Constitution  was  a  great  creative 
work.  It  established  a  union  of  states  and  breathed 
into  it  the  powers  and  attributes  of  nationality.  It 
was  a  new  departure;  for  until  then,  though  there  had 
been  various  leagues  and  federations  united  by  written 
covenants,  and  some  small  local  constitutions,  there  had 
been  no  attempt,  anywhere  in  the  world,  to  make  a 
written  constitution  on  a  large  scale;  one  that  should 
be  the  supreme  organic  law  for  a  great  nation.  What 
is  a  constitution?  The  question  is  more  difficult  than  it 
seems.  In  a  general  way,  however,  it  may  be  said  that 
it  is  the  system  or  body  of  fundamental  principles,  writ- 
ten or  unwritten,  under  which  a  nation,  state  or  body 
politic  is  formed  or  governed. 

Unwritten  constitutions,  like  the  British — that  an- 
cient fabric  which  our  fathers  knew  and  revered — are 
evolutionary,  growing  from  year  to  year,  from  reign  to 
reign,  and  from  century  to  century.  Bagehot,  writing 
of  the  English  Constitution,  was  oppressed  with  the 
difficulties  of  the  subject,  because  of  this  very  element 


*^8<)00.'i 


of  growth.  ■""  There  is  a  great  difficulty  in  the  way  of 
a  writer,"  he  says,  "  who  attempts  to  sketch  a  living 
constitution— a  constitution  that  is  in  actual  work  and 
power;  the  difficulty  is  that  the  object  is  in  constant 
change."  An  unwritten  constitution  is  never  com- 
pleted; for,  silently,  with  the  growth  of  years,  it  is  modi- 
fied and  enlarged  to  meet  the  exigencies  of  what  Glad- 
stone termed  "  progressive  history."  It  is  an  old  story; 
on  one  side  successive  demands,  on  the  other  successive 
refusals,  until  that  which  was  stubbornly  contested 
finally  settles  down  and  becomes  incorporated  in  the 
great  catalogue  of  indisputable  rights. 

No  doubt  the  English  constitution  is  well  adapted  to 
the  English  people,  and  they  to  it.  They  grew  to- 
gether; the  people  faster  than  the  constitution,  but 
waiting — generally,  though  not  always,  with  patience — 
for  the  incorporation  of  ancient  and  incommunicable 
rights  into  the  acknowledged  fundamental  law  of  the 
realm.  Well  did  Tennyson  describe  the  process  by 
which  the  British  constitution  was  evolved,  when  he 
wrote: 

"  A  land  of  old  and  just  renown 

Where  freedom  broadens  slowly  down 
From  precedent  to  precedent." 

It  is,  perhaps,  not  quite  accurate  to  speak  of  the 
British  constitution  as  an  unwritten  one,  for  its  great 
features  were  written  in  black  and  white  to  the  end 
that  they  should  never  be  forgotten.  Such  was  Magna 
Charta,  of  which  Professor  Stubbs  says  that  the  entire 
body  of  English  constitutional  history  is  but  a  com- 
mentary upon  it.  Such  was  the  Petition  of  Rights; 
the  Habeas  Corpus  Act  of  1679;  the  Bill  of  Rights, 
and  the   Act  of  Settlement.     These  are  parts   of  the 


British  constitution,  not  because  they  are  in  writing, 
but  because  they  are  of  such  fundamental  character 
that  they  are  presumed  to  inhere  in  the  common  rights 
of  British  subjects. 

But,  gentlemen,  it  need  not  be  said  that  the  British 
constitution,  however  splendid  its  proportions,  could 
not  suffice  when  the  American  people  proposed  to  em- 
bark upon  a  career  of  separate  nationality.  They  had 
their  local  charters,  constitutions  and  laws;  they  had 
the  articles  of  confederation,  and  each  had  for  itself 
the  English  common  law.  But  all  these  did  not,  and 
could  not,  make  a  nation;  or  if  you  like  the  term 
better,  a  national  government.  Surely  never  did  men 
face  a  graver  responsibility  than  did  those  who  un- 
dertook to  bring  order  out  of  the  chaos  which  then 
enveloped  them.  They  proposed  to  form  a  more 
perfect  union,  establish  justice,  insure  domestic 
tranquility,  provide  for  the  common  defense,  pro- 
mote the  general  welfare,  and  secure  the  blessings 
of  liberty  to  themselves    and  their  posterity. 

This  lofty  enumeration  of  their  purposes  was,  in  itself, 
a  solemn  judgment  upon  the  Articles  of  Confederation, 
which,  indeed,  all  men  knew  were  entirely  inade- 
quate for  gathering  or  holding  the  fruits  of  their  strug- 
gle for  independence.  "  The  Confederation,"  in 
the  language  of  that  great  lawyer,  Horace  Bin- 
ney,  "  was  no  more  than  the  limited  representative 
of  other  governments,  and  not  a  government  it- 
sell.  It  was  a  league  of  sovereigns,  but  not  a  sover- 
eign." Indeed,  it  is  not  a  just  use  of  language  to  call 
that  a  government  which  had  no  executive,  no  coer- 
cive power,  no  power  of  energetic  offense  or  defense, 
and  no  means  of  raising  revenue  beyond  the  voluntary 


contributions   of    the   different   states.     Washington's 

genius  was  of  that  sane,  clear-eyed   quality  which  does 

not  often  indulge  in    figures   of  speech;  but   the    man 

who  never  gave  up  hope  when  his  armies  were  in  the 

field  against  appalling  odds  said,  in  1786: 

"  It  is  clear  to  me  as  A,  B,  C,  that  an  extension  of 
federal  powers  would  make  us  one  of  the  most  happy, 
wealthy,  respectable  and  powerful  nations  that  ever 
inhabited  the  terrestrial  globe.  Without  them,  we  shall 
soon  be  everything  which  is  the  direct  reverse.  I 
predict  the  worst  consequences  from  a  half  starved, 
limping  government,  always  moving  upon  crutches, 
and  tottering  at  every  step." 

The  Father  of  His  Country  seldom  suffered  his  mind 
to  be  moved  from  its  serene  equipoise;  and  it  was 
surely  an  alarming  situation  that  could  wring  such  lan- 
guage from   him. 

And  so  the  Convention  which  framed  the  Federal 
Constitution  was  called.  It  is  curious  to  note  how 
little  was  said  by  those  who  pressed  upon  the  people 
and  upon  the  state  governments  the  necessity  of  a  con- 
vention, about  the  paramount  reason  that  was  in  their 
minds,  which  was  that  the  country  was  rapidly  drifting 
into  anarchy.  The  governors  and  dignitaries  who  were 
working  together  to  bring  about  a  convention,  the  leg- 
islatures that  passed  resolutions  in  favor  of  it,  and  the 
great  leaders  who  in  private  life  were  so  influential  in 
moulding  public  opinion,  generally  veiled  the  real 
meaning  of  the  movement  by  talking  about  the  neces- 
sity of  a  better  understanding  in  respect  to  their  com- 
mercial relations,  a  fair  distribution  of  trade,  the  con- 
struction of  canals  and  other  such  matters,  which, 
though  certainly  important,  were  as  nothing  when 
compared  with  the  immediate  and  imperative  necessity 
of  transforming  the  confederation  into  a  government 


of  real  national  vigor,  possessing  not  only  the  authority 
which  belongs  to  a  nation,  but  the  power  to  vindicate 
it  at  home  and  abroad. 

It  is  a  hard  thing  to  make  a  constitution — still  harder 
to  make  a  good  one,  or  one  which  can  be  relied  upon 
to  stand  the  strain  of  actual  use.  Nevertheless,  the 
delegates  undertook  the  task,  and  began  in  a  manner 
which  augured  well  for  the  success  of  their  efforts 
when  on  May  25th,  1787,  by  a  unanimous  vote,  they 
chose  George  Washington  to  preside  over  their  delib- 
erations. In  a  little  less  than  four  months  the  work 
of  the  convention  was  finished.  The  instrument  they 
framed  is  known  to  all — at  least  its  language  and  the 
general  scope  of  its  various  provisions.  Time  has 
shown,  and  every  year  it  becomes  clearer,  that  Glad- 
stone's oft-quoted  panegyric  was  profoundly  true,  when 
he  said:  "The  American  Constitution  is  the  most  won- 
derful work  ever  struck  off  at  a  given  time  by  the 
brain  and  purpose  of  man."  The  men  who  framed  it 
were  not  mere  visionaries.  They  were,  almost  with- 
out exception,  calm,  thoughtful  men,  who  thoroughly 
apprehended  the  problem  they  had  to  solve,  and  knew 
that  it  could  not  be  worked  out  by  declamation,  nor  by 
passionate  discussion  of  the  abstract  rights  of  Man,  nor 
by  mutual  congratulations  that  they  had  wrested  from 
the  Mother  Country  an  acknowledgment  of  their  inde- 
pendence. They  were  called  upon  to  construct — or, 
rather,  to  reconstruct — and  to  that  great  task  they 
bent  their  energies,  patriotically,  intelligently,  and 
triumphantly. 

What  order  of  men  they  were  is  shown  in  the  light 
of  a  historical  contrast  which  is  full  of  dramatic  in- 
terest.    France  was  in  trouble — a  trouble  more  serious, 


more  tragic,  more  frightful  than  any  which  ever  be- 
fore confronted  an  existing  order  of  things.  The 
Revolution  was  upon  them.  Poor  Louis  the  Six- 
teenth was  struggHng  in  a  blind  way  with  the  forces, 
political,  social  and  intellectual,  which  were  ultimately 
to  bring  his  reign  to  an  end  and  his  head  to  the  block. 
On  the  very  day  that  George  Washington  was  elected 
President  of  the  convention,  the  great  assembly  of 
the  Notables — the  first  which  had  met  since  the  days 
of  Richelieu — adjourned.  They  had  sat  two  months 
and  utterly  failed  to  do  anything  which  could  save 
France.  Then  came  another  meeting  of  the  Notables 
and  of  the  States  General,  the  National  Assembly,  the 
Constituent  Assembly,  and  that  fruitless  and  utterly 
abortive  attempt  to  make  a  constitution  which  should 
save  the  King's  crown  and  the  people's  rights.  Car- 
lyle,  in  his  saturnine  way,  observes  of  this  depressing 
effort: 

"A  constitution  can  be  built;  constitutions  enough, «/^ 
Sieyes,  but  the  frightful  difficidty  is  that  of  getting  men 
to  come  and  live  in  them.  *  *  *  Xhe  constitution, 
the  set  of  laws  or  prescribed  habit  that  men  will  live 
under,  is  the  one  which  images  their  convictions — their 
faith  as  to  this  wondrous  Universe;  and  what  rights, 
duties,  capabilities,  they  have  there;  which  stands 
sanctioned,  therefore,  by  Necessity  itself;  if  not  by  a 
seen  Deity,  then  by  an  unseen  one.  Other  laws, 
whereof  there  are  always  enough  ready-made,  are 
usurpations  which  men  do  not  obey,  but  rebel  against 
and  abolish  at  their  earliest  convenience." 

This  language  may  seem  extravagant  and  not  alto- 
gether intellgible,  but  in  it  there  is  that  essential  grain 
of  truth  which  is  in  all  that  Carlyle  wrote.  Their  at- 
tempt at  constitution-making  failed,  for  it  could  not 
rally  to  its  support  any  faith  in  its  inherent  strength 
or  genuineness.     It  simply  collapsed  when   put  to  the 


pitiless  test  of  those  pitiless  times.  Great  hopes  had 
been  centered  in  it,  hopes  of  deliverance,  hopes  of  hap- 
pinessand  hopes  of  peace;  but  Carlylesums  up  the  result 
in  a  single  sentence,  which  he  makes  the  heading  for 
one  of  his  grandly  picturesque  chapters:  "Constitu- 
tion WILL   NOT   MARCH," 

But,  gentlemen,  the  constitution  our  fathers  made 
had  the  marching  quality  in  it;  and  our  history  records 
how  it  has  marched  in  good  and  evil  days,  sometimes 
through  perils  and  difficulties,  sometimes  seeming  al- 
most ready  to  halt,  but  always  moving  forward.  The 
people  who  framed  it,  and  the  people  who  adopted 
it,  never  considered  it  perfect;  some  of  the  mem- 
bers of  the  convention  refused  to  sign  it,  and  its 
adoption  was  fiercely  opposed  in  many  of  the  states.  In 
the  convention,  Franklin,  old  and.  feeble  in  body,  but 
with  unimpaired  intellectual  vigor,  urged  the  members 
to  sink  their  personal  objections  for  the  sake  of  the 
great  issue  at  stake.  "Thus  I  consent,  sir,  to  this 
constitution,"  he  said,  "because  I  expect  no  better 
and  because  I  am  not  sure  that  it  is  not  the  best.  The 
opinions  I  have  had  of  its  errors  I  sacrifice  to  the 
public  good." 

Though  the  work  of  the  convention  was  not  entirely 
satisfactory  to  any  member,  nearly  all  accepted  it  as  the 
best  then  attainable,  and  only  three  refused  to  sign  it. 
It  was  nearly  three  years  before  all  the  states  came  in 
under  it,  and  when  Rhode  Island  gave  her  tardy  assent, 
the  government  of  the  Union  was  already  in  operation, 
George  Washington  was  President,  and  the  constitu- 
tion had  begun  its  march. 

It  is  impossible  to  over-estimate  the  difficulties  that 
confronted  the  men  upon  whom  devolved  the  duty  of 


8 

administration  in  the  new  government.  They  were  to 
be  guided  by  the  constitution,  but  the  constitution  itself 
was  not  entirely  clear,  and  many  different  views  were 
held  as  to  its  meaning.  It  was  the  result  of  a  large 
number  of  compromises  between  different  classes  of  po- 
litical thinkers  and  between  different  localities  and  in- 
terests. As  has  been  truly  said,  "  Nobody  liked  all  its 
provisions,  and  everybody  feared  some  of  them."  And 
yet,  no  one  can  doubt  that  its  adoption  was  a  great, 
wise  and  patriotic  act;  for  all  experience  has  shown 
that  statesmanship  is  not  the  obstinate  reaching  out 
for  the  unattainable,  but  the  acceptance  of  the  best 
that  is  within  reach.  It  was  the  profound  recognition 
of  this  truth  that  secured  its  adoption,  without  the  pro- 
visions soon  afterward  adopted  in  the  first  ten  amend- 
ments, the  absence  of  which  in  the  original  draft  caused 
so  much  opposition.  The  good  sense  of  the  American 
people  accepted  the  work  of  Washington  and  the  con- 
vention over  which  he  presided,  as  infinitely  better  than 
the  confederation,  even  if  there  were  in  it,  to  the  minds 
of  most  men,  obvious  imperfections.  Many,  many 
great  causes  have  been  wrecked  by  the  unyielding  op- 
position of  narrow  minds,  seeingonly  a  single  point,  that 
may  or  may  not  be  correct,  but  which  is  as  nothing 
compared  with  the  object  to  be  attained.  Such  minds 
there  were  in  that  day,  and  such  there  have  been  always, 
who,  honestly  believing  that  human  wisdom  is  centered 
in  them,  cling  fast  to  the  things  which  are  petty  and 
insignificant,  and  sacrifice  those  which  are  of  supreme 
value.  But  the  constitution  was  adopted;  and  those 
who  had  opposed  it  were  loud  in  their  prophecies  of 
failure;  and  those  who  had  supported  it  were  not  with- 
out doubts.  Its  friends  could  only  admit  frankly  that 
it  was  an  experiment  which  must  wait  the  test  of  time. 


The  organization  of  the  government  under  the  con- 
stitution was  one  of  the  greatest  events  in  human 
history.  It  was  not  a  dramatic  affair,  such  aswhen  Na- 
poleon put  upon  his  head  the  iron  crown  of  Lombardy; 
it  was  grave  and  stately  in  a  certain  republican  fashion 
as  became  a  people  who  were  establishing  a  nation, 
with  a  fixed,  a  determinate  organic  law,  and  were  pro- 
posing to  move  forward  within  its  limits.  But  what 
were  its  limits?  What  were  the  powers  of  the  new  gov- 
ernment? Were  the  people  of  the  United  States  a  na- 
tion with  a  national  government,  or  only  citizens  of 
their  respective  states  and  of  a  federal  union  of  states? 
These  questions  had  not  been  settled  in  any  authori- 
tative way.  As  Judge  Cooley  has  said:  "The  de- 
cision upon  them,  when  thus  presented,  might  deter- 
mine whether  the  constitution  was  to  be  a  bond  of 
union  or  a  rope  of  sand;  for  the  practical  construction 
might  make  it  one  or  the  other." 

This  only  means  that,  after  all,  the  constitution 
which  had  been  declared  to  be  the  supreme  law  of  the 
land  must  needs  be  subjected  to  the  test  of  construc- 
tion and  interpretation.  The  almost  infinite  variety  of 
questions  which  might  become  subjects  of  litigation 
would  surely  call  upon  the  courts,  and  finally  upon  the 
court  of  last  resort,  for  judicial  announcements  of  the 
scope  and  meaning  of  every  provision.  Such  is  the  in- 
firmity of  human  language  that  members  of  the  con- 
vention who  had  voted  for  the  constitution  differed  as 
to  the  meaning  of  its  various  provisions.  It  was  plain 
from  the  first  that  the  Supreme  Court  would  have  to 
grapple  with  great  and  difficult  questions.  The  com- 
position of  the  court,  and  particularly  the  order  of 
mind  which  should  be  possessed  by  the    Chief  Justice, 


10 

were  matters  of  weighty  importance,  Again  I  quote 
from  Judge  Cooley,  whose  great  learning,  high  char- 
acter and  eminent  judicial  abilities  have  so  en- 
deared  him  to  our  profession: 

"  When  the  time  is  considered,  and  the  circumstances 
under  which  the  duty  of  authoritative  construction 
must  be  entered  upon,  one  cannot  fail  to  be  impressed 
that  peculiar  qualifications  were  essential  in  the  person 
who  should  preside  over  the  body  to  whom  that  duty 
would  be  entrusted,  and  who  would  give  direction  to 
its  thought.  He  ought  certainly  to  be  a  learned  and 
able  lawyer;  but  he  might  be  this  and  still  fail  to  grasp 
the  full  significance  of  his  task.  A  mere  lawyer  might 
see  in  the  Constitution  nothing  but  an  agreement  of 
parties,  to  be  construed  by  technical  rules;  it  required 
a  statesman  to  understand  its  full  significance,  as  an 
instrument  of  government  instinct  with  life  and  with 
authority." 

You  will  note,  I  doubt  not,  in  the  language  I  have 
quoted,  the  phrase  "  a  mere  lawyer."  Far  be  it  from 
me  to  say  that  "  a  mere  lawyer"  may  not  be  a  very  well- 
meaning  and  useful  man.  But  he  never  was  and  never 
will  be  a  great  judge.  In  this  country,  every  judge, 
state  and  federal,  is,  or  may  be,  called  upon  to  decide 
questions  arising  under  constitutions,  and  such  ques- 
tions require  historical  knowledge,  an  insight  into  the 
meaning  of  organic  laws,  of  the  duties  and  obligations 
of  citizenship,  and,  finally,  of  the  great  purposes  of  a 
constitutional  and  an  institutional  government.  John 
Jay,  our  first  Chief  Justice,  was  lawyer,  statesman 
and  diplomat,  a  student  of  literature,  and  a  man  of 
unbending  integrity  and  spotless  character.  To  his 
hands  and  the  hands  of  his  associates  the  new  and 
untried  constitution  was  entrusted,  It  is  interesting 
to  read  the  proceedings  of  the  court  in  those  first  days, 
when   questions  of  practice   and   procedure  were  con- 


11 

stantly  coming  up  and  receiving  the  careful  considera- 
tion of  the  court,  and  were  about  the  only  questions 
before  it.  There  was  little  business  in  the  eleven  years 
which  preceded  the  appointment  of  Marshall,  and  only 
six  constitutional  cases  were  decided. 

In  one.  Ware  v.  Hylton,  reported  in  3rd  Dallas, 
John  Marshall  was  counsel  for  defendant  in  error, 
and  was  badly  beaten,  all  the  judges  save  Iredell  be- 
ing against  him — and  Iredell  against  him  on  part  of 
the  case.  This  was  at  the  February  Term,  1796.  Five 
years  later,  on  F'ebruary  4,  1801,  John  Marshall,  him- 
self, took  his  seat  as  Chief  Justice  of  the  Court  which 
had  turned  a  deaf  ear  to  the  only  argument  he  had 
made  before  it. 

Thus  far  the  constitution  had  marched;  but  it  must 
be  admitted  its  pathway  had  not  been  a  smooth  one. 
The  people  had  already  learned  that  the  Supreme 
Court  was  a  body  claiming  enormous  powers — powers 
that  thousands  of  good  men  viewed  with  sincere 
alarm.  F"rom  the  first  the  country  had  been  divided  on 
the  question  whether  there  should  be  a  strong  national 
government,  operating  directly  upon  the  people,  or  a 
mere  agency  for  certain  purposes  while  the  vigor  of 
effective  government  should  remain  in  the  several 
states.  In  the  convention  and  before  the  people 
there  had  been  earnest,  sometimes  angry,  dis- 
cussion of  this  question.  Those  who  had  hoped 
that  it  would  be  settled  by  the  language  of  the 
constitution  itself  were  doomed  to  disappointment, 
for,  studying  it  sentence  by  sentence  and  line  by 
line,  it  was  evident  that  the  argument  was  not 
closed.  The  question  was  simply  changed  from: 
"  What  government  is  best?"  to  "  What  government 
has  the  constitution  actually  given  us?  " 


12 

The  Supreme  Court  has  been  eloquently  called  "  the 
living  voice  of  the  constitution,"  and  from  its  organiza- 
tion it  has  courageously  assumed  the  right  to  speak  the 
final  word  as  to  its  meaning,  and  as  to  the  rights  it 
grants  and  the  obligations  it  imposes.  We  are  so  much 
accustomed  to  connecting  the  name  of  Marshall  with 
the  establishment  of  constitutional  principles  that 
we  have  hardly  done  justice  to  the  court  as 
it  stood  before  his  appointment.  They  were  learned 
men,  they  were  honest  men,  and  they  were — 
which  is  scarcely  less  important — firm  and  unwavering 
in  the  performance  of  every  judicial  duty.  When 
Chisholm  v.  The  State  of  Georgia  was  brought  before 
them,  the  country  was  aflame  with  excitement.  Mingled 
feelings  of  astonishment  and  indignation  filled  men's 
minds,  at  the  thought  of  bringing  a  sovereign  state 
into  court  like  an  ordinary  debtor.  The  opinion  of 
Justice  Wilson — himself  one  of  the  signers  of  the  con- 
stitution— is  a  quaint  and  curious  piece  of  judicial 
literature. 

"  This  is  a  case  of  uncommon  magnitude,"  said 
Justice  Wilson.  "  One  of  the  parties  to  it  is  a  State; 
certainly  respectable,  claiming  to  be  sovereign.  The 
question  to  be  determined  is,  whether  this  State,  so  re- 
spectable, and  whose  claim  soars  so  high,  is  amenable 
to  the  jurisdiction  of  the  Supreme  Court  of  the  United 
States?  This  question,  important  in  itself,  will  depend 
on  others  more  important  still;  and  may,  perhaps,  be 
ultimately  resolved  into  one  no  less  radical  than  this — 
'Do  the  people  of  the  U^iited  States  form  a  Nation?'  " 

This  grim  question  was  destined  to  rise  from  time 
to  time  until  finally  answered  on  the  battlefield.  Judge 
Wilson  gave  his  own  answer  toward  the  close  of  his 
opinion  in  these  words: 

"  Whoever  considers,  in  a  combined  and  comprehen- 


13 

sive  view,  the  general  texture  of  the  constitution,  will 
be  satisfied  that  the  people  of  the  United  States  in- 
tended to  form  themselves  into  a  nation  for  national 
purposes.  They  instituted,  for  such  purposes,  a  na- 
tional government,  complete  in  all  its  parts,  with  pow- 
ers legislative,  executive  and  judiciary;  and  in  all  those 
powers  extending  over  the  whole  nation." 

When  it  became  known  that  the  court  had  held  the 
State  of  Georgia  to  be  suable  by  a  private  citizen,  an 
overwhelming  demand  went  up  for  an  amendment  to 
the  constitution,  and  so  the  eleventh  amendment  was 
straightway  adopted.  A  large  portion  of  the  people 
thought  the  decision  in  Chisholmv.  Georgia  wrong,  and 
it  must  be  admitted  that  the  question  involved  was  a 
very  doubtful  one,  and  to  this  day  lawyers  differ  as  to 
its  correctness.  But  the  adoption  of  the  eleventh 
amendment  removed  the  question  from  discussion,  ex- 
cept by  historical  students. 

When  Marshall  took  his  seat  it  was  plain  enough  to 
all  that  he  would  have  many  uncomfortable  experiences 
and  much  rancorous  criticism.  Though  he  was  of  a 
singularly  calm  and  equable  temperament,  no  one  in 
the  station  to  which  he  was  called  could  expect  to 
escape  the  hostility  of  faction.  He  was  a  Federalist; 
and  Jefferson,  whose  administration  came  on  less  than 
a  month  after  Marshall's  appointment,  was  a  Re- 
publican. These  two  great  men,  both  Virginians,  both 
patriots,  both  sincerely  devoted  to  the  principles  of 
constitutional  liberty  as  they  understood  them,  enter- 
tained for  each  other  a  dislike  almost  amounting  to 
hatred.  Each  considered  the  other  a  dangerous  enemy 
to  the  liberties  of  his  country,  and  neither  concealed 
this  opinion  from  his  intimate  friends.  The  result  was 
bitter  hostility — more  or  less  hidden  by  the  proprie- 
ties which  rested  upon  each — but  still  well  understood 
by  their  friends  and  partisans. 


14 

It  is  not  worth  while,  now,  to  judge  between  them, 
for  the  names  of  both  are  cherished  by  all  their  coun- 
trymen. But  I  believe  the  settled  opinion  of  good  law- 
yers and  of  statesmen  whose  minds  have  the  conserva- 
tive strength,  which  is  the  real  test  of  statesmanship, 
is  that,  on  this  fundamental  question,  Marshall 
took  the  broader  and  the  safer  view.  He  be- 
lieved, and  avowed  his  belief,  in  a  strong  govern- 
ment; and  so  also  did  his  adversaries.  But  they 
believed  the  strength  should  be  in  the  separate 
parts,  while  he  believed  it  should  be  in  the  sum  of  all 
the  parts — the  Nation.  Our  subsequent  history  has  told 
how  vain  it  was  to  rely  on  judicial  decisions  to  settle 
such  a  question.  What  the  language  of  the  constitu- 
tion had  left  open  to  discussion,  the  people  continued 
to  discuss.  It  is  not  fair  to  say  that  the  advocates  of 
State  rights,  so  called,  had  nothing  on  which  to  base 
their  claims,  nor  that  they  were  perversely  wrong  who 
believed  the  federal  government  was  but  a  mere  con- 
trivance to  enable  the  states  to  get  along  comfortably 
with  foreign  nations  and  with  each  other — so  long  as 
each  state  could  have  its  way.  Of  course,  as  we  see  it 
now,  the  scheme  of  a  constitutional  government  for 
the  Union  was  a  far  more  comprehensive  scheme  than 
that.  It  was,  indeed,  the  great  conception  of  John 
Milton:  " — not  *  *  *  many  sovereignties  united  in 
one  Commonwealth,  but  many  commonwealths  under 
one  united  and  intrusted  sovereignty." 

When  Marshall  came  to  the  bench,  he  had  to  face 
the  question  which  Judge  Wilson  had  asked  in  Chisholm 
V.  Georgia, — '*  Is  the  United  States  a  Nation  ?"  And 
he  answered  it,  in  those  monumental  opinions  which 
preserve  his  memory  and  will  preserve  it  forever. 


15 

John  Marshall  was  the  simplest  of  men  in  his  daily 
life;  a  Virginia  gentleman,  content  to  move  in  the 
path  of  duty,  but  with  the  iron  firmness  which  is 
much  more  common  in  gentle  natures  than  is  gen- 
erally supposed.  Because  he  was  a  Federalist,  it  was 
often  said  that  he  was  the  advocate  of  an  aristocratic 
government;  but  it  is  hard  to  see  how  one  can  be 
charged  with  favoring  an  aristocratic  government 
who  simply  believed  that  there  ought  to  be  a  direct 
connection  between  that  government  and  all  its  citi- 
zens, with  no  intermediary  between  them.  The  phil- 
osophical student  has  not  failed  to  see  that  it  was 
not  the  believer  in  the  supremacy  of  the  nation  within 
its  accorded  limits,  who  favored  an  aristocracy,  but  the 
champion  of  a  system  which  would  make  all  rights  de- 
pendent upon  the  permission  of  an  assumed  sov- 
ereignty, local  but  imperious. 

The  first  case  in  which  Marshall  was  called  upon  to 
go  deeply  into  the  theory  of  our  government  is  Mar- 
bury  V.  Aladhon,  a  case  familiar  to  our  profession  as  a 
great  landmark  of  constitutional  law.  Though  the  writ 
of  mandamus  was  denied,  the  Chief  Justice  showed  by 
a  wealth  of  argument  which  has  never  since  been  ques- 
tioned that  the  relator  was  entitled  to  the  writ, — 
though  not  from  the  Supreme  Court.  The  great  value 
oF  the  decision  lies  not  so  much  in  the  conclusive 
demonstration  that  all  officers  of  the  government  are, 
in  the  performance  of  their  ministerial  duties,  bound  by 
the  law,  and  subject  to  the  courts,  as  in  the  luminous  and 
convincing  discussion  of  the  question:  "  What  is  the 
duty  of  the  judiciary  when  a  statute  not  authorized  by 
the  constitution  is  asserted  as  the  basis  of  a  legal  right?" 
If   Marshall   had   hesitated  or  flinched,  if  he  had  par- 


16 

Ic^yed  with  duly  or  i()ni|)i()inis('(l  with  coiiscciiiciices, 
our  (experiment,  ol  a  const  it  lit  ioiial  government  would 
have  been  a  faihirc*  so  j^rcat  as  to  have  carried  deslruc- 
tion  with  it  to  all  such  experiments  for  generations  to 
come.  It  seems  (;asy  now  fora  jndtj^e  to  hav(^  walk(;(l  in  so 
|)lain  a  |)alh.  Hiit  we  should  not  for<j^et  that  constilu- 
tions  heiorc;  that  time— and  sine(.'  also,  exce[)t  in  the 
United  States  -were  never  suprctme  in  any  real  or  lit- 
eral sense.  Unwritten  constitutions  are  constitutions 
only  hy  fiction.  In  JMi^land  constitutional  principles 
are  much  discussed,  but  no  one  ev(M"  claiuKrd  an  act 
of  Parliament  could  he  ignored  or  disrtrj^arded  for  a 
sui)i)os(ed  or  real  violation  of  that  intann^ible  and  liquid 
idt-al  called  tlue  {British  Constitution.  It  seems  strange 
to  us,  but  yet  in  l^u^dand  an  act  of  Parliament  may  be 
unconstitutional,  and  still  be  le^al  and  valid,  hi  other 
words,  the  British  Constitution  is  i)erfect  as  a  text,  but 
worthless  wluMi  Parlianu'iit  j)reachc:s  th(!  s(ermon.  Hut 
the  omnipotence  of  Parliament  is  a  very  (lilT(u-ent  thinjr 
from  the  acts  of  a  legislature  whose  powers  are  circum- 
scrib(;d  by  the  only  omnipotent  thinjjj  in  our  j^overn- 
mtMit,  which  is  the  constitution;  not  a  list  of  precedents 
and  prescriptive  rijji^hts,  biU  th(!  (kdiberate  will  of  the 
people  set  down  in  written  words,  by  the  only  sovereif^n 
authority  th('  people  themselves.  No  court  in  the 
world,  outside  of  the?  United  Staters,  would  presume  to 
disregard  a  leu^islative  act,  on  the  ground  that  it  violates 
the  constitution  of  the  count ry,  written  or  unwritten. 
Coke,  I  )e  Lolme,  Hlackstone,  and  the  great  commen- 
tators on  the  British  Constitution,  ^'\ve  us  a  surfeit  of 
the  omnipotence  of  l\arliament  which,  it  is  said — ap- 
[)arently  as  an  admission  against  interest, — cannot 
transform  a  man  into  a  woman  or  a  woman  into  a  man, 
but  can  do  anything  else. 


17 

In  Marlmry  v.  Madison,  the  great  Chief  Justice,  as  was 
liis  habit,  reduced  the  question  to  its  utmost  sim- 
plicity by  asking  other  questions:  "To  what  purpose 
are  powers  bmited,"  he  iiH|uired,  "and  to  what  purpose 
is  that  limitation  committed  to  writing,  if  these  limits 
may,  at  any  time,  be  passed  by  those  intended  to  be 
restrained?"  And  he  answered:  "  Certainly  all  those 
who  have  framed  written  constitutions  contem|)late 
them  as  forming  the  fundamental  and  paramount  law 
of  the  Nation,  and,  consequently,  the  theory  of  every 
such  government  must  be  that  an  act  of  the  legislature 
repugnant  to  the  constitution  is  void."  Mark  the  word 
"  void'' — not  doublful  or  questionable,  but  void. 

It  was  in  this  great  case  that  we  find  the  maxim 
which  has  come  down  through  our  judicial  history,  and 
has  been  asserted  in  many  important  cases,  that  "the 
government  of  tlu;  United  States  is  a  government  of 
laws  and  not  of  men."  Within  tin;  last  twelve;  months 
the  Supreme  Court  of  the  United  States,  speaking  by 
Justice  Brewer,  again  announced  it  in  Railway  Com- 
pany v.  Tompkins. 

And  so,  gentUMuiMi.  the;  constitution  has  marched;  and 
one  of  the  greatest  steps  it  ever  took  was  when  John 
Marshall  gave  distinct  notice  that  it  was  the  su- 
preme and  ultimate  law  against  which  nothing  could 
prevail.  There  were  men  in  those  days — patriotic 
statesmen,  according  to  their  lights,  who  sincerely  be- 
lieved the  doctrine  that  the  Supreme  Court  could  de- 
clare an  act  void  on  the  ground  that  it  violated  the 
constitution  was  an  unwarranted  and  dangerous  as- 
sumption of  |)()W(;r.  "  Why  should  the  judiciary,"  they 
asked,  "  override  the  co-ordinate  branches  of  the  gov- 
ernment?     The   President    must    decide    for    himself. 


18 

Congress  must  decide  for  itself  on  all  such  questions" — 
which  only  meant  that  constitutional  provisions  were 
but  high-sounding  phrases,  signifying  nothing. 

The  next  great  forward  step  ot  the  constitution  was 
McCulloch  V.  Maryland,  famous  in  our  judicial  annals, 
because  it  involved  a  question  absolutely  vital  in  the 
relations  of  the  National  government  to  the  govern- 
ments of  the  States.  In  Marbury  v.  Madison  the  court 
had  held  that  an  act  of  Congress  repugnant  to  the  con- 
stitution is  void.  Now  came  the  question  which,  un- 
der our  form  of  government,  was  much  more  serious: 
Is  a  State  statute  which  is  repugnant  to  the  Federal 
Constitution  also  void?  Both  these  questions  seem 
entirely  plain  and  simple  now,  but  we  must  remember 
that  in  the  beginning  the  people  were,  as  Edmund 
Randolph  had  so  happily  said,  "  in'the  infancy  of  the 
science  of  constitutions."  I  am  inclined  to  think  that 
McCtillochv. Maryland  w2iS  the  most  important  and  far- 
reaching  decision  in  all  Marshall's  career  as  Chief  Jus- 
tice. It  is  certainly  the  most  powerful  discussion  of 
constitutional  principles  in  the  history  of  the  court,  a 
classic  for  lawyers  and  for  statesmen.  Though  there 
were  but  two  questions  to  be  decided,  it  is  impossible 
for  even  a  dull  man  to  read  the  opinion  without  gain- 
ing a  fairly  correct  idea  of  the  theory  of  our  govern- 
ment and  its  great  principles.  You  know,  as  every 
American  lawyer  knows,  the  two  questions  involved: 

ist.     Has  Congress  power  to  incorporate  a  bank? 

2nd.     If  it  has,  can  a  state  tax  it? 

The  intellect  of  John  Marshall  was  a  strange  com- 
pound of  the  practical  and  the  ideal.  This  is  not  so 
rare,  however,  as  is  sometimes  supposed.  Lincoln  had 
it  in  a  degree  which  was  almost  sublime.     Napeleon 


19 

had  it;  Cromwell  had  it,  and  Mansfield,  according  to 
Pope,  was  another  Ovid,  expounding  the  law  when  he 
might  have  been  writing  the  poems  of  his  own  and 
of  future  ages. 

Marshall  opened  his  opinion  by  a  few  sentences 
which  showed  that  the  man  was  not  unconscious  of 
what  the  judge  was  about  to  decide.  He  said:  "  The 
constitution  of  our  country  in  its  most  interesting  and 
vital  point  is  to  be  considered;  the  conflicting  powers 
of  the  Union  and  of  its  members  as  marked  in  that 
constitution  are  to  be  discussed,  and  an  opinion  given 
which  may  essentially  influence  the  great  operations  of 
government.  No  tribunal  can  approach  such  a  ques- 
tion without  a  deep  sense  of  its  importance  and  of  the 
awful  responsibility  involved  in  its  decision." 

Gentlemen,  it  is  a  masterful  quality  in  a  judge  to  be 
able  to  perceive  the  far-reaching  effects  of  his  decis- 
ions; for  the  responsibility  increases  as  the  conse- 
quences grow  more  distinct  and  formidable. 

The  next  sentence  of  this  great  judgment  is  pa- 
thetic in  the  evidence  it  bears  how  gladly  he  would 
have  found  some  honorable  way  of  escape,  some 
sanctuary  in  which  his  duty  would  suffer  him  to 
take  refuge.  But  there  was  the  question;  and  the 
court  of  which  he  was  Chief  Justice  could  not  shrink. 
He  added,  with  undaunted  firmness:  "  But  it  must  be 
decided  peacefully,  or  remain  a  source  of  hostile  legis- 
lation, perhaps  hostility  of  a  still  more  serious  nature; 
and  if  it  is  to  be  so  decided,  by  this  tribunal  alone  can 
the  decision  be  made.  On  the  Supreme  Court  of  the 
United  States  has  the  constitution  of  the  country  de- 
volved this  important  duty." 

You  would    not   thank   me   to  go   over  the  decision 


20 

point  by  point  to  show  how  unerringly  he  demonstrated 
that  the  government  of  the  nation  is  supreme  within  the 
scope  of  its  powers,  that  it  may  avail  itself  of  all  neces- 
sary and  proper  means  of  exercising  those  powers,  and 
that  neither  Maryland  nor  any  other  state  can  inter- 
fere with,  cripple  or  impede  its  lawful  operations  as  a 
government.  Jurists  and  statesmen,  from  that  day 
to  this,  have  found  the  opinion  a  treasure-house  of 
constitutional  principles  from  which  in  many  great 
emergencies  they  have  liberally  drawn, 

McCulloch  V .  Maryland  ysi2.'~>  decided  at  the  February 
Term,  i8iq.  At  the  same  term  the  decision  in  the 
celebrated  Dartmouth  College  case  was  pronounced. 
More  than  any  other  case  it  has  entered  into 
the  discussion  of  questions  involving  corporate 
rights,  and  their  protection  from  legislative  im- 
pairment. The  court  had  already  held  in  Fletcher 
V.  Peck,  6  Cranch,  87,  that  a  legislative  grant  is 
a  contract  and  entitled  to  the  protection  of  the  con- 
stitution from  a  subsequent  legislative  act  annulling  the 
grant.  But  the  grant  involved  in  Fletcher  v.  Peck  was 
one  of  lands  made  by  the  legislature  of  Georgia  in 
1795,  and,  therefore,  after  the  adoption  of  the  federal 
constitution;  while  in  the  Dartmouth  College  case,  it 
was  of  a  corporate  charter  granted  by  King  George 
the  Third  in  1769.  It  is  a  matter  of  familiar  legal 
history  that  the  old  charter  was  held  to  be  a  contract, 
and  that  the  legislature  of  New  Hampshire  could  not 
amend  or  materially  alter  it  without  violating  the  con- 
stitution. It  has  sometimes  been  thought,  both  within 
and  without  the  legal  profession,  that  the  court  pushed 
the  doctrine  of  the  inviolability  of  contracts  from 
legislative    impairment    too    far    in    this     case.       But 


21 

it  seems  to  me  the  decision  was  not  only  sound,  in  law, 
but  useful  and  salutary  in  its  effects.  It  is  not  so 
frequently  cited  now  as  formerly,  because  almost  all 
statutes  for  the  organization  of  corporations  contain 
provisions  authorizing  the  legislature  to  alter  or 
amend,  and  so  the  right  to  do  so  becomes  a  part  of  the 
contract  itself. 

As  I  have  already  said,  and  as  you  know  from  your 
familiarity  with  the  history  of  the  times,  the  subject  of 
commerce,  and  the  commercial  relations  of  the  differ- 
ent states,  was  one  of  the  great  inducing  motives  that 
led  to  the  adoption  of  the  constitution.  It  was  not 
the  only  one,  and  perhaps  not  the  principal  one,  but  it 
was  a  very  powerful  one.  Trade  and  traffic,  buying 
and  selling,  exchanging  commodities  and  carrying  on 
the  extensive  operations  which  are  incident  to  modern 
civilization,  were  in  men's  minds  then  as  they  are  now, 
and  will  be  always.  Before  the  constitution,  Maryland, 
Delaware  and  Virginia;  New  York,  New  Jersey  and 
Pennsylvania  wrangled  and  disputed  over  duties,  re- 
strictions and  regulations  calculated  to  advance  the  in- 
terests of  one  against  the  others,  for  selfishness  has 
always  been  a  largely  controlling  motive  of  human 
action.  When  the  framers  of  the  constitution  inserted 
the  provision  vesting  in  Congress  the  power  to  regulate 
commerce  among  the  several  states,  they  stamped  upon 
their  work  the  indubitable  evidence  of  practical  wis- 
dom. But  what  is  commerce?  What  is  regulation.'' 
These  questions  have  followed  the  path  of  our  na- 
tional progress.  It  has  not  always  been  easy  to  answer 
them,  and  they  have  left  in  their  wake  many  un- 
settled and  indeterminate  inquries.  The  present  Inter- 
state Commerce  Law  is  an  attempt  to  solve  some  of 


22 

them,  and  is  certainly  a  great  forward  step  in  the  de- 
velopment of  the  constitution.  I  believe,  and  I  think 
the  belief  is  shared  by  our  profession  and  by  the 
business  interests  of  the  country,  that  the  theory  of  the 
act  is  right,  and  that  the  time  will  come  when  the  great 
purpose  of  the  constitution  in  respect  to  commerce  will 
be  attained.  It  takes  time  to  build  up  the  structure  of 
legal  right  upon  the  basis  of  acknowledged  principles, 
and  we  must  remember  that  successful  legislation 
seldom  precedes  the  acquiesence  of  those  most  largely 
affected  by  it. 

Gibbons  V.  Ogden,  decided  in  1824,  is  the  great  source 
to  which  all  must  go  who  would  understand  the  scope 
and  import  of  the  commerce  clause  of  the  constitution. 
Again,  the  great  Chief  Justice  had  to  face  the  preten- 
sions of  a  sovereign  state,  and  to  strike  down  one  of 
its  statutes.  There  is  a  certain  solemnity  in  all  of 
Marshall's  constitutional  decisions;  a  solemnity  becom- 
ing a  great  magistrate  with  such  duties  to  perform. 
No  judge  ever  had  to  walk  in  a  harder  path.  But  he 
never  faltered,  and  his  judgments  have  stood  every  test, 
as  the  firm  and  convincing  pronouncements  of  the  law. 

Gibbons  v.  Ogden  upheld  the  exclusive  power  of  Con- 
gress to  regulate  commerce  among  the  states,  wherever 
it  has  legislated  upon  the  subject.  The  argument  in  the 
case  dealt  largely  with  the  question  whether  navigation 
is  commerce,  but  Marshall,  answering  the  question  in 
the  affirmative,  added  in  that  conclusive  way  which  no 
other  judge  ever  equaled  or  approached:  "Commerce 
undoubtedly  is  traffic,  but  it  is  something  more;zV  is  in- 
tercourse!' It  would  almost  seem  that  he  was  prophet 
as  well  as  judge,  for  in  that  sentence  he  unconsciously 
foretold  the  railroad,  the  telegraph,  the  telephone  and 


23 

all  the  wonderful   appliances    by    which    science    com- 
pels nature  to  be  the  servant  and  minister  of  man. 

In  this  great  case  Marshall  rendered  a  service  to 
his  country  in  laying  down  the  true  principle  of  con- 
struction, as  great,  perhaps  greater,  than  in  construing 
the  commerce  clause  which  was  before  the  court.  He 
vindicated  the  constitution  as  a  working  instrument  of 
government.  He  made  it,  if  I  may  say  so,  what 
in  modern  litigation  we  call  "  a  going  concern." 
In  all  Marshall's  opinions  I  recall  nothing  more 
filled  with  the  wisdom  of  the  hour  nor  more 
useful  to  the  generations  that  were  coming  on, 
than  his  fine  disposition  of  the  argument  that  the 
constitution  must  be  strictly  construed.  "What  do 
gentlemen  mean,"  he  asks,  "  by  a  strict  construction  ?  If 
they  contend  only  against  that  enlarged  construction 
which  would  extend  words  beyond  their  natural  and 
obvious  import,  we  might  question  the  application  of 
the  term,  but  should  not  controvert  the  principle.  If 
they  contend  for  that  narrow  construction  which,  in 
support  of  some  theory  not  to  be  found  in  the 
constitution,  would  deny  to  the  government  those 
powers  which  the  words  of  the  grant,  as  usually 
understood,  import  and  which  are  consistent  with 
the  general  views  and  objects  of  the  instrument; 
for  that  narrow  construction  which  would  cripple  the 
government  and  render  it  unequal  to  the  objects  for 
which  it  is  declared  to  be  instituted,  and  to  which  the 
powers  given,  as  fairly  understood,  render  it  competent; 
then  we  cannot  perceive  the  propriety  of  this  strict 
construction,  nor  adopt  it  as  the  rule  by  which  the  con- 
stitution is  to  be  expounded." 

There  is  something  very  noble  and  elevating  in  the 


24 

discussion  towards  the  end  of  the  opinion,  of  the  powers 
of  the  states  and  of  the  general  government  where  he 
speaks  of  "powerful  and  ingenious  minds,"  who  would 
explain  away  the  constitution  "  and  leave  it  a  mag- 
nificent structure,  indeed,  to  look  at,  but  totally  unfit 
for  use."  Gentlemen.  John  Marshall  was  not  "a  mere 
lawyer." 

His  judicial  career  and  his  earthly  career  ended  July  6, 
1835.  He  had  been  Chief  Justice  thirty-four  years,  and 
it  is  only  true  of  him  to  say  that,  "  take  him  for  all  in  all," 
he  was  the  greatest  judge  that  ever  lived.  By  the  com- 
mon and  unfettered  judgment  of  the  bar,  by  the  unani- 
mous voice  of  statesmen,  jurists  and  scholars,  he  was 
the  oracle  of  our  constitutional  law,  the  interpreter, 
the  expounder,  and  in  a  certain  sense  the  maker  of 
the  constitution.  True,  he  was  not  a  member  of  the 
convention  that  framed  it,  but  he  was  a  member  of  the 
Virginia  convention  that  passed  upon  and  adopted 
it,  and  when  he  came  to  the  bench  he  took  up  as  the 
cases  came  before  him  the  great  questions  presented 
and  solved  them  unerringly  and,  as  we  all  know,  con- 
clusively. During  all  his  long  incumbency  of  the  chief 
judicial  office  there  never  was  a  day  that  the  constitu- 
tion did  not  move  forward,  as  a  constitution  should, 
to  meet  the  crowding  exigencies  of  human  affairs. 

And  so,  gentlemen,  the  constitution  marched;  and 
without  exaggeration  it  maybe  truly  declared  that  John 
Marshall  was  its  guide,  its  light  and  its  defender.  Our 
profession  looks  upon  him  with  a  somewhat  idolatrous 
feeling,  but  I  do  not  think  it  is  excessive.  When  we 
consider  what  might  have  been  our  fate  if  another  and 
not  he  had  occupied  that  great   seat,   we   may  well   be- 


25 

lieve  that  Providence  watched  over  the  Republic.  He 
interpreted  the  constitution,  but  he  interpreted  it  in  the 
comprehensive  way  which  made  it  a  thing  of  life  in- 
stead of  death;  a  chart  of  government  instead  of  a 
collection  of  meaningless  phrases.  Only  two  Amer- 
icans are  better  entitled  to  the  gratitude  of  our  peo- 
ple,— George  Washington  and  Abraham  Lincoln. 

When  Marshall  died  our  government  under  the  con- 
stitution was  less  than  half  a  century  old.  He  had 
been  Chief  Justice  thirty-four  years,  and  had  laid  the 
foundation  of  our  constitutional  law,  in  that  massive 
and  enduring  way  which  was  his  wont.  His  judicial 
temperament  was  such  that  it  was  not  possible  for  him  to 
see  any  question  simply  on  its  technical  side.  He 
had,  in  its  fullest  measure,  that  "  large  discourse" 
of  which  Shakespeare  speaks,  "  looking  before  and 
after."  Since  his  day  many  constitutional  questions 
have  arisen,  are  still  arising,  and,  we  may  be  sure,  will 
continue  to  face  us  with  the  flight  of  years.  But  the 
hard  ones  came  in  that  formative  period,  when  the 
path  was  dim  and  untrodden.  If  you  will  read  the 
subsequent  reports  of  the  great  court  over  which  he  so 
long  presided  you  will  find  few  constitutional  decisions 
that  do  not  draw  from  his  opinions  as  from  a  peren- 
nial fountain.  An  eminent  lawyer,  Judge  Simeon  E. 
Baldwin,  in  his  Presidential  address  before  this  As- 
sociation for  189T,  said,  and  at  that  moment  John 
Marshall  must  have  been,  consciously  or  unconsciously, 
in  his  memory:  "  Constitutions  are  nothing  unless 
enforced  in  the  spirit  in  which  they  were  conceived. 
In  them,  more  than  in  any  other  thing  of  human 
foundation,  '  the  letter  killeth.'  "  Surely  a  constitution 
for  a  great  Nation,  a  Nation  whose  founders  knew  that 


26 

it  would,  and  intended  that  it  should,  grow,  must  be 
construed  with  a  view  to  the  Nation's  needs,  and  its 
possibilities, 

Roger  B.  Taney,  who  succeeded  Marshall,  was  a 
man  eminently  fitted  for  that  exalted  position.  Learned, 
able,  patient,  honest,  he  filled  the  ideal  of  a  great  judge. 
But,  like  Marshall,  he  had  a  temperament;  like  Mar- 
shall, he  belonged  to  a  school.  Strict  construction*was 
as  dear  to  him  as  it  was  odious  to  his  predecessor. 
But,  gentlemen,  our  profession  can  never  fail  to 
acknowledge  the  services  of  Chief  Justice  Taney 
upon  the  bench,  the  sincerity  of  purpose,  and  steadfast 
devotion  to  his  sense  of  duty,  which  always  character- 
ized him. 

In  all  frankness,  let  me  say  for  myself— and  I  believe 
for  my  profession — I  wish  there  had  been  no  Dred 
Scott  case.  It  attracted  so  much  attention;  it  touched 
the  minds  and  souls  of  men  so  deeply  that  Taney's 
name  is  inseparably  connected  with  it.  And  yet, 
who  of  us  is  prepared  to  maintain  that,  apart 
from  the  admitted  obiter  \n  the  opinions,  the  decision 
was  wrong,  as  the  law  then  stood?  Let  us  be  just. 
Judge  Taney  was  sustained  by  the  entire  court,  save 
two,  McLean  and  Curtis.  It  matters  little  now  who 
was  right  and  who  was  wrong;  for  the  issue  went  to  a 
higher  court  and  was  settled  forever. 

It  cannot  be  said  of  Chief  Justice  Taney  that  he  did 
not,  in  his  lofty  estimate  of  judicial  duty,  uphold  with  a 
firm  and  equal  hand  the  rights  of  litigants,  high  and 
low.  In  the  License  Cases  Judge  Taney  sustained  the  re- 
served powers  of  the  States  in  their  proper  field  of  po- 
lice regulation.  In  Charles  River  Bridge  v.  Warren 
Bridge,  he  applied  his  life-long  principle  of  strict   con- 


27 

stniction  to  grants  of  public  franchises  to  private  cor- 
porations. Here  he  found  most  appropriate  occasion 
for  the  application  of  this  principle,  and  in  so  doing 
established,  as  the  permanent  doctrine  of  the  Supreme 
Court,  the  ancient  rule  of  the  common  law,  that  all 
public  grants  must  be  strictly  construed  against  the 
grantee. 

This  doctrine  has  been  most  beneficial  to  the  country. 
Denying  the  right  of  any  corporation  to  enjoy  a  mo- 
nopoly in  an  avenue  of  transportation  and  travel,  he 
stimulated,  and  to  a  large  degree  made  possible,  that 
great  industrial  development  upon  which  the  country 
was  then  entering. 

Unfortunately  for  a  calm  and  entirely  just  estimate 
of  his  judicial  career,  his  lot  was  cast  in  a  period  of 
angry  political  discussion,  and  anxious  solicitude  for 
the  fate  of  our  institutions.  As  Chief  Justice,  it  came 
to  him  in  the  order  of  duty  to  administer  the  oath  of 
office  to  Abraham  Lincoln  as  President  of  the  United 
States.  When  these  two  men,  each  with  a  different 
image  ot  our  Government  in  his  mind,  stood  face  to 
face  on  the  east  porch  of  the  Capitol,  what  strange 
emotions,  memories  and  hopes  crowded  upon  them. 
The  venerable  Chief  Justice,  bowed  with  the  weight 
of  years,  and  the  sad  feeling  that  a  new  and  stormy 
period  was  opening  before  the  country,  could  only 
perform  the  duty  of  his  office,  and  silently  repress  his 
gloomy  forebodings.  The  new  President,  filled  with  a 
solemn  sense  of  the  future,  appealed  to  all  his  country- 
men, North  and  South,  in  words  which  will  live  for- 
ever: "  We  are  not  enemies,  but  friends;  we  must  not 
be  enemies;  if  passion  may  have  strained,  it  must  not 
break  our  bonds  of  affection."      This  sad   and    tender 


28 

language  did  not  conceal,  and  was  not  intended  to 
conceal,  the  inflexible  purpose  of  the  man.  He  had 
already  said  in  that  same  inaugural,  and  for  four  weary 
years  he  abided  by  it, — "  I  hold  that,  in  contemplation 
of  universal  law  and  of  the  constitution,  the  Union 
of  these  States  is  perpetual."  It  is  not  too  much  to 
say  that  in  that  moment,  the  voice  of  John  Marshall 
spoke  again. 

I  need  not,  on  such  a  theme,  recount  the  story  of  the 
war.  During  that  memorable  conflict  the  courts,  wher- 
ever they  could,  continued  to  exercise  their  ordinary 
jurisdiction.  And  if  questions  sometimes  arose  which 
brought  the  unwelcome  answer,  "  Inter  arma  silent 
leges,''  no  one  now  doubts  that  the  essential  principles 
of  the  constitution  retained  their  vigor.  The  three 
great  amendments  that  followed  the  war,  and  which 
made  freedom  and  equality  organic  in  our  law,  were 
the  logical  and  irresistible  conclusion  of  that  great 
struggle. 

The  fourteenth  amendment,  perhaps  in  a  larger 
sense  than  its  framers  realized,  and  certainly  more 
than  the  Supreme  Court  at  first  recognized,  is  the  great 
anchorage  for  the  rights  which  essentially  belong  to 
citizenship  in  a  free  government.  By  the  fifth  amend- 
ment the  people  had  protected  these  rights  against 
arbitrary  encroachments  by  the  general  government; 
while  by  the  fourteenth  amendment,  they  in  like  manner 
protected  them  against  the  arbitrary  exercise  of  power 
by  any  of  the  states.  Taking  them  together,  they  are 
to  us  what  Magna  Charta  was  and  is  to  the  English 
people;  yet  with  this  distinction,  that  under  our  system 
fundamental  rights  are  not  mere  abstractions.  Here, 
constitutions  mean  what  they  say;  and  every  citizen 
may  appeal  to  the  courts  for  their  vindication. 


29 

When  these  guaranties  were  thus  made  uniform  in 
respect  to  both  national  and  state  legislation,  the  con- 
stitution took  a  forward  step;  and  w^hen  in  1886*  the 
Supreme  Court  decided  that  these  guaranties  extended 
to  every  person,  natural  or  artificial,  another  great 
advance  was  made. 

Notwithstanding  the  able  opinion  of  that  great  jurist, 
Mr.  Justice  Miller,  in  the  Slaughter  House  Cases, — and 
although  the  profession  quite  generally  believe  the 
main  question  involved,  which  was  one  of  police  power, 
was  correctly  decided — the  large  scope  of  the  four- 
teenth amendment,  maintained  in  the  dissenting  opin- 
ions of  Justices  Field,  Bradley  and  Swayne,  and  con- 
curred in  by  Chief  Justice  Chase,  has  since  become 
the  established  view  of  the  court  in  numerous  decisions. 
In  none  of  them,  probably,  has  the  doctrine  been  more 
convincingly  expressed  than  by  Mr.  Justice  Harlan  in 
the  great  case  of  Smyth  v.  Ames.  Speaking  of  the 
fourteenth   amendment  he  there  said: 

"  In  view  of  the  adjudications  these  principles  must 
be  regarded  as  settled: 

"  I.  A  railroad  corporation  is  a  person  within  the 
meaning  of  the  fourteenth  amendment  declaring  that 
no  state  shall  deprive  any  person  of  property  without 
due  process  of  law,  nor  deny  to  any  person  within  its 
jurisdiction  the  equal  protection  of  the  laws. 

"  2.  A  state  enactment,  or  regulations  made  under 
the  authority  of  a  state  enactment,  establishing  rates 
for  the  transportation  of  persons  or  property  by  rail- 
road that  will  not  admit  of  the  carrier  earning  such 
compensation  as  under  all  the  circumstances  is  just  to 
it  and  to  the  public,  would  deprive  such  carrier  of  its 
property  without  due  process  of  law  and  deny  to  it  the 
equal  protection  of  the  laws,  and  would,  therefore,  be 
repugnant  to  the  fourteenth  amendment  of  the  Con- 
stitution of  the  United  States. 

Santa  Clara  Co.  v.  Southern  Pac.  Railroad,  118  U.  S.,  394. 


30 

"  3-  While  rates  for  the  transportation  of  persons 
and  property  within  the  limits  of  a  state  are  primarily 
for  its  determination,  the  question  whether  they  are  so 
unreasonably  low  as  to  deprive  the  carrier  of  its  prop- 
erty without  such  compensation  as  the  constitution  se- 
cures, and,  therefore,  without  due  process  of  law,  can- 
not be  so  conclusively  determined  by  the  legislature  of 
the  state  or  by  regulations  adopted  under  its  author- 
ity, that  the  matter  may  not  become  the  subject  of 
judicial  inquiry." 

It  has  been  supposed  by  some  students  of  our 
national  history  that  a  written  constitution  is  an  inert 
mass  of  tabulated  provisions.  The  supposition  is  not 
correct;  for  the  national  constitution,  under  the  guid- 
ance of  our  great  court  of  last  resort,  has  grown  and 
developed,  not,  perhaps,  like  an  unwritten  one,  but  still 
keeping  abreast  with  the  demands  of  "  progressive 
history."  This  does  not  mean  that  a  written  consti- 
tution grows  by  being  violated  whenever  its  provisions 
stand  in  the  way  of  national  progress;  but  it  does 
mean  that  our  constitution  was,  by  the  enlightened 
foresight  of  its  framers,  made  to  be  an  intelligent 
guide  and  chart,  and  not  a  mere  list  of  obstacles.  The 
American  people  in  constructing  their  constitutions, 
both  national  and  for  the  states,  cherished  the  great 
features  of  the  English  constitution,  of  which  they,  as 
well  as  the  English,  were  heirs,  and  so  their  work  has 
ever  been  preservative  of  the  old,  as  well  as  creative 
of  the  new. 

In  the  complex  workings  of  modern  civilization, 
large  fortunes  have  been  rapidly  accumulated,  and 
great  wealth  has  been  centered  in  few  hands.  People 
naturally  ask:  Would  a  just  order  of  social  and 
economic  relations  permit  this  to  happen?  Whatever 
the    true    answer  may    be    to    this    inquiry,    no    one 


31 

acquainted  with  the  general  history  of  the  human 
race,  or  with  our  own  history  as  a  Nation,  can  doubt 
that  the  well-being  of  our  people  depends  upon 
maintaining  sacredly  the  equal  rights  guaranteed 
by  the  fifth  and  fourteenth  amendments  to  rich  and  poor 
alike.  Property,  because  it  is  most  easy  of  attack,  is 
most  frequently  attacked.  This  is  no  new  illustration 
of  human  nature,  but  is  a  part  of  the  phenomena  of 
all  history. 

When  the  Centennial  Anniversary  of  the  Supreme 
Court  was  celebrated  in  New  York,  the  venerable 
Justice  Field  said,  with  the  prophetic  dignity  which 
became  that  solemn  occasion: 

"As  population  and  wealth  increase — as  the  inequal- 
ities in'the  conditions  of  men  become  more  and  more 
marked  and  disturbing — as  the  enormous  aggregation 
of  wealth  possessed  by  some  corporations  excites  un- 
easiness lest  their  power  should  become  dominating  in 
the  legislation  of  the  country,  and  thus  encroach  upon 
the  rights  or  crush  out  the  business  of  individuals 
of  small  means— as  population  in  some  quarters  presses 
upon  the  means  of  subsistence,  and  angry  menaces 
against  order  find  vent  in  loud  denunciations — it  be- 
comes more  and  more  the  imperative  duty  of  the  court 
to  enforce  with  a  firm  hand  every  guaranty  of  the 
Constitution.  Every  decision  weakening  their  restrain- 
ing power  is  a  blow  to  the  peace  of  society  and  to  its 
progress  and  improvement.  It  should  never  be  for- 
gotten that  protection  to  property  and  to  persons  can- 
not be  separated.  Where  property  is  insecure,  the 
rights  of  persons  are  unsafe.  Protection  to  the  one 
goes  with  protection  to  the  other;  and  there  can  be 
neither  prosperity  nor  progress  where  either  is  uncer- 
tam. 

In    English    history,    as    in    our    own,  most  of    the 

great  questions  which  mark  the  progress  of  legal  rights 

have   grown    out   of    small    property    disputes.     Men 


32 

have  invariably  been  more  ready  to  engage  in  litiga- 
tion over  concrete  questions  than  to  go  to  law  about  ab- 
stract principles.  The  historic  assertions  of  personal 
privilege  which  have  come  down  to  us  from  Hampden's 
day  have  generally  risen  from  some  slight  encroach- 
ment upon  the  property  or  rights  of  a  single  in- 
dividual. 

It  was  but  an  injunction  suit  brought  by  the  State  of 
Texas  against  private  individuals  claiming  ownership 
of  certain  United  States  bonds  that  gave  us  the  great 
pronouncement  upon  the  nature  of  our  government ; 
which,  all  things  considered,  is  perhaps  the  most  valu- 
able judicial  utterance  ever  made  under  our  constitu- 
tion. "The  constitution,  in  all  its  provisions."  said 
Chief  Justice  Chase,  "  looks  to  an  indestructible  union, 
composed  of  indestructible  states." 

The  indestru*ctibility  of  the  states,  when  thoughtfully 
considered,  is  the  surest  guaranty  of  an  indestructible 
union.  Throughout  our  constitutional  history  we  have 
carried  on  the  most  complex  system  of  government 
known  to  man; — and  to-day  I  venture  to  assert  that, 
notwithstanding  its  complexity,  it  has  been  so  ad- 
ministered as  to  combine  more  of  liberty  to  the  citizen 
with  more  of  power  in  the  nation  than  any  other  con- 
stitutional government.  The  states,  unimpaired  in 
their  just  powers,  carry  on  the  due  operations  of  local 
administration  unfettered; — and  the  union^which  is  a 
union  both  of  people  and  of  states — has  long  since 
passed  the  time  when  any  court  or  any  statesman  may 
renew  Justice  Wilson's  inquiry: — "  Do  the  people  of 
THE  United  States  form  a  Nation?" 


14  DAY  USE 

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